LALLU Vs. STATE

JUDGEMENT

(1.) THIS is an application for releasing from the custody by one Lallu alias Prem, who has been granted pardon as an approver in a case under sec. 302 IPC pending in the court of Additional Sessions Judge No. 2, Jaipur City. After the statement of the petitioner was finally recorded during the trial on 2nd September, 1978, he moved an application that he had complied with all the conditions of pardon and his statement has also been recorded during the course of inquiry before the Magistrate and also during the trial before the learned Additional Sessions Judge and there remains nothing to be done by him, he should be released on bail inasmuch as only 18 witnesses of the prosecution have been examined during the last three years, and, 54 prosecution witnesses have yet to be examined which may take a very long time, and, specially when all the three accused persons have been released on bail, there was no justification for keeping him in custody any longer and an order should be given to release him forthwith. A prayer in this regard was made by the petitioner but the learned trial Court by its order dated 20th October, 1978, dismissed the same, as such the petitioner has come before this court in the exercise of its revisional jurisdiction under sec. 397 Cr. P. C.

(2.) LEARNED counsel for the petitioner has vehemently contended that it is admitted by the prosecution that the petitioner has not violated any conditions of pardon and he has already remained in jail for a period of three years and there is no chance of his being released still for a period of three to four years as 54 prosecution witnesses have yet to be examined. He has further contended that the accused persons who are the main culprits in the case have been released on bail and it would be very harsh and unjust if the petitioner who has helped the State in bringing out the truth before the Court, will have to remain behind the bars without any just cause. In these circumstances the learned counsel for the petitioner has appealed that this court should pass an order for releasing the petitioner in exercise of its inherent powers. LEARNED counsel has cited Mohammed Abdul Majid vs. Emperor (l), Karupa Servai vs. Kundaru alias Muniandi Thevan (2) and A. L. Mehra vs. The State (3 ).

(3.) IN Ayodhya Singh's case (supra), this court has already taken the view as mentioned below: - "sec. 337 (3) Criminal P. C. runs as follows: "such person unless he is already on bail, shall be detained in custody until the termination of the trial. " The word "shall" has been used in sub-sec. (3 ). It is true that the nature of any provision whether discretionary or mandatory is not to be construed from the word 'shall' or 'may' used therein. IN certain cases, the 'shall' can be regarded to be not a mandatory nature if on consideration of enactment as a whole it appears the discretion has been left open for the Court. A bare reading of sub-sec. (3) would reveal that the general powers of the Court regarding granting of bail and had been taken away by this sub-section. IN the sub-section the Legislature has not only used the word 'shall' but it is preceded by the words 'unless he is already on. bail'. These words clearly suggest that the Legislature has prohibited the Court from passing contrary orders. The word 'shall' in the present context must be deemed to be a mandatory nature. According to sub-sec. (3) an approver has to be kept in custody till the termination of the trial. He is not to be allowed to be let off on bail when he is not on bail at the time he is tendered pardon. It is not the case of the petitioner that he was on bail on the date he was made approver or tendered pardon. The case of the petitioner stands fully covered by sub-sec. (3) of Sec. 337 Criminal P. C. The petitioner has stated that long period of time would be spent in concluding the trial as the prosecution has cited 174 witnesses in the case. Delay in disposal of the case cannot be considered a valid ground where the law prohibits the release of the approver till the termination of the trial. " IN view of the above decisions it is clear that sec. 306 of the Code of Criminal Procedure, 1973 is a special provision for the approvers and general provisions of granting bail have been excluded in their cases. This Court cannot go behind the wisdom or policy of the legislature as expressly laid down under sec. 306 Code of Criminal Procedure, 1973, IN case an approver has not been released on bail at the time when his pardon tendered by him is accepted then he is bound to be detained in custody until the termination of the trial. When there is a specific provision in the Code of Criminal Procedure Code, this court cannot exercise its powers under its inherent jurisdiction. There is no escape from the conclusion that the petitioner shall have to be detained in custody until the termination of the trial, even though the other accused persons have been released on bail. It is for the legislature to make any provision in such contingency.